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Introduction

In 1970, Congress enacted the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961, ostensibly to curtail the criminal activities of the mafia. In the forty years since RICO was enacted, the application of the law has extended far beyond the activities of loansharks and the “Don,” and into Constitutionally protected protest activities. Over time, the federal courts have gradually made the original intent of RICO – i.e. stopping the criminal activities of the mafia – less and less significant. Instead, the courts have issued interpretations of RICO that consistently ignore this intent and allow the law to be used as a way to silence advocates for social change. Animal welfare organizations such as People for the Ethical Treatment of Animals (PETA), the American Society for the Prevention of Cruelty to Animals (ASPCA), the Humane Society of the United States (HSUS), as well as many others have been victims of RICO prosecutions.

Thus, RICO has degenerated into a weapon that government and industry actors can use against advocates for social change – a weapon that can inflict millions of dollars in court fees and fines, as well as potential jail time, for mere acts of protest. Organizations and individuals that engage in protest for social change, especially protest against businesses and corporations that exploit animals, are now exposed to the threat of RICO charges, fines, and incarceration. Undoubtedly, this application of RICO results in a chilling effect on all of our First Amendment rights.

The Law

In 1950, the U.S. Attorney General held a conference that explored growing national concern with the increased criminal activities and influence of the mafia. As a result of the conference, several committees were formed to develop a legal strategy to address this concern. These committees recommended legislation that would act as a broad net to catch all possible criminal activity committed by mafia members. In 1970, Congress enacted RICO as Title IX of the Organized Crime Control Act. The law contains a long, broad list of activities that qualify as “racketeering,” and thus as federal crimes under RICO if the government can establish a “pattern” of more than one such act.

A violation of RICO can lead to a prison sentence of 20 years to life, as well as fines and permanent government seizure of personal property. In addition to these criminal penalties from the government, the “victim” business/individual in a RICO case may also file a civil lawsuit to recover three times the money damages actually incurred (referred to as “treble damages”), as well as attorneys’ fees, for itself. These treble damages and attorneys’ fees provisions are attractive to businesses and individuals looking to collect huge payoffs.

RICO’s broad definition of racketeering has allowed the Act to be consistently misused and applied to advocates for social change with no connection whatsoever to the mafia and organized crime. Often the purported basis for applying RICO to these political activists is that their activities fall within the loose definition of “extortion” under section 1961.

The Evolution of RICO “Extortion”

Generally, courts will look to a federal law known as the Hobbs Act in order to determine if a criminal act qualifies as an act of extortion. The Hobbs Act, 18 U.S.C. § 1951, defines extortion as “obtaining of property from another, without his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” The U.S. Supreme Court has interpreted this definition to apply even if the alleged extortionist doesn’t actually receive a direct benefit by obtaining the property at issue, United States v. Green, 350 U.S. 415 (1956), and even if the alleged extortionist does not have any economic motive to commit the action, see Scheidler v. National Organization for Women, Inc., 547 U.S. 9, 14-15 (2006). However, the U.S. Supreme Court has also held that extortion must still include some actual obtaining of property.See Scheidler v. National Organization for Women, Inc., 547 U.S. 9 15 (2006).

Application of RICO to Animal Welfare Organizations

Undercover investigation of animal testing laboratory
The initial expansion of RICO primarily affected anti-abortion protestors engaged in physically violent attacks on abortion clinics. However, in 1997, People for the Ethical Treatment of Animals (PETA) became the first advocacy group that was not an anti-abortion group to be sued under RICO. Huntingdon Life Sciences – a business that engages in controversial exploitative animal testing practices such as live dissection and aggressive physical abuse of captive domestic animals – filed a civil RICO lawsuit against PETA after PETA publicly exposed the company’s extraordinarily cruel practices.

Huntingdon Life Sciences alleged that PETA had engaged in a “pattern of racketeering activity” prohibited by RICO by (1) conducting undercover investigations of its animal testing laboratories, including most recently an eight month undercover investigation in one of the company’s New Jersey laboratories, and then (2) publicly releasing video footage and other documentation of the incredibly cruel and abusive practices observed by the PETA investigator.
See Huntingdon Life Sciences, Inc. v. Rokke, 986 F. Supp. 982, 984 -985 (E.D. VA. 1997)

The practices documented by the PETA investigator included breaking the legs of domestic dogs and then administering osteoporosis drugs to the dogs to see how the bones healed. The tapes also showed workers routinely slamming monkeys into cages, and suspending monkeys in mid-air while pumping test substances into their stomachs. One technician stuffed a lotion bottle into a monkey’s mouth as a “joke.” Perhaps the most alarming was a video that showed a terrified and alert monkey kicking and screaming as it was being strapped down to an operating table. Although the monkey was given some sedatives, it was still conscious as lab technicians cut its body open and removed its organs.

When PETA released these videos to the media, the public immediately let Huntingdon Life Sciences know that its cruel and exploitative practices were outrageous and unacceptable. Companies that had commissioned Huntingdon Life Sciences to test their products cancelled their contracts and investors dumped their stocks, resulting in losses of millions of dollars to the corporation. PETA had also turned over the videotapes to the U.S. Department of Agriculture (USDA). The USDA performed a subsequent investigation of Huntingdon Life Science’s laboratory practices, and ended up charging the facility with 23 counts of violating the Animal Welfare Act. See In Defense of Animals v. U.S. Dept. of Agriculture, 656 F.Supp.2d 68, 82 (D.D.C. 2009) (court ordering that USDA and Huntingdon Life Sciences had to disclose the records of this investigation to the public under the federal Freedom of Information Act because “defendants have failed to justify the withholding of the records”).

After filing the RICO lawsuit, Huntingdon Life Sciences convinced the court to issue a gag order to stop PETA from publicly disseminating the results of its investigation, and the court held PETA in contempt of court for allegedly violating this order. When PETA then asked the court to dismiss the RICO claims, the court refused its request, finding that the “eight month investigation by Rokke [PETA’s investigator] and the subsequent transportation of documents for use in press releases and direct mailings” were sufficient acts to constitute crimes of “racketeering” that amounted to a “pattern of racketeering” under RICO when considered in conjunction with past PETA investigations. More specifically, the court found that the acts of the PETA investigator that fit within the scope of RICO were that she “(1) participated in the interstate transportation of documents stolen from Huntingdon” and “(2) violated the Travel Act by traveling to Ohio to promote the extortionate scheme . . . .” Apparently, the court was referring to the undercover investigation in general as the “extortionate scheme.” The case eventually settled out of court.

Furrier Protest

In 1999, Jacques Ferber, Inc., a furrier located in Philadelphia, filed the second RICO civil lawsuit against animal welfare organizations and several individual animal rights advocates alleging that the groups had engaged in a pattern of racketeering activity that included conspiring to shut down the furrier. Jacques Ferber, Inc. v. Bateman et al., Civ. No. 99-2277 (E.D. PA 1999). The lawsuit alleged that the weekly protests that the activists had participated in for four years were “interfering with his legitimate business enterprise” and this amounted to a federal crime of conspiracy and racketeering under RICO. Although there was evidence that individual protestors had broken windows, poured acid on windows, and glued the store’s front entrance shut, there was no evidence of which individual protesters had committed the acts, or that any of the named defendant organizations were in any way responsible for these activities. In addition to alleging extortionate vandalism in their lawsuit, the company also alleged that the activists had disseminated “defamatory stickers and signs” outside of the store, as part of their effort to “interfere with business.” These “defamatory stickers and signs” were used as one of the predicate acts that constituted the larger “extortionate scheme,” and the company sought $50,000 in damages for stickers and signs alone. In response to the lawsuit, the activists agreed to refrain from property destruction, property defacement, trespassing, or disorderly conduct in connection with lawful demonstrations, entering the store or residence of the company’s employees, attempting to initiate communicate with minor children of the company’s employees, blocking access to the store, committing other illegal activities, and from encouraging other to commit any of these activities. The case was then dismissed.

Circus Elephant Abuse Protest

Nearly 15 years after the first RICO case was filed against animal welfare activists, RICO is still being used against these activists. In 2010, Feld Entertainment, Inc., the company that owns Ringling Bros. and Barnum & Bailey Circus, filed a federal civil RICO lawsuit against the Humane Society of the United States (HSUS), the American Society for the Prevention of Cruelty to Animals (ASPCA), the Animal Welfare Institute, the Fund for Animals, the Animal Protection Institute, former circus elephant keeper turned elephant welfare advocate Tom Rider, and leading animal law firm Meyer, Glitzenstein & Crystal. The lawsuit alleges that “In order to bring a philosophical debate into federal court to advance a radical ‘animal rights’ agenda and in order to garner publicity and raise money to support their various activities, defendants [], acting in concert with their attorneys, [], devised and participated in an illegal and fraudulent pattern of actions to circumvent well established limits on the Article III jurisdiction of the federal courts.” See complaint PETA vs FELD.

Essentially, the company argues that that these animal rights groups and their attorneys participated in a pattern of racketeering activity that includes bribery, paid witnesses, and mail fraud across interstate lines in the process of litigating a case against the company to protect Asian elephants under the Endangered Species Act. The Endangered Species Act lawsuit alleges that Ringling Bros.’ routine beating of elephants with bull hooks, and its chaining of elephants for long periods of time constitute the unlawful “take” of these endangered animals in violation of the Endangered Species Act. See ESA Complaint. In February – March, 2009, the U.S. District Court for D.C. held a six-week long trial of the case challenging Ringling Bros.’ treatment of Asian elephants in the circus. Several former Ringling Bros. employees testified that the circus routinely strikes elephants with sharp bull hooks and keeps the elephants chained for the majority of their lives. The plaintiffs submitted voluminous evidence, including internal FEI documents and USDA documents, supporting their claims, and some of the world’s leading experts on elephants testified that Ringling Bros.’ routine practices “wound,” “harm,” and “harass” the elephants in violation of the Endangered Species Act. The case is currently on appeal in the D.C. Circuit Court of Appeals.

In addition to the apparently retaliatory RICO lawsuit, Feld Entertainment, Inc. has a history of attempting to dismantle animal rights groups that campaign to expose its cruel treatment of circus animals. In the past, Feld Entertainment has teamed up with the CIA and spent millions of dollars in an attempt to infiltrate animal welfare groups like PETA and In Defense of Animals. See complaint PETA V FELD (PDF). Operatives illegally recorded conversations and obtained highly confidential bank account numbers and bank information, credit card information, confidential internal financial records, and personnel information.

Our state legislative bodies are in place to represent their respective constituencies, to uphold the democratic process, and work towards the needs of their citizens. What happens when a group that does not constitute represented individuals or work towards their interests in any way undermines this relationship between the people and their government? Recently, waves of bills have been introduced and passed in state legislatures that seem to contradict democracy rather than promote it: laws that cut off collective bargaining rights, roll back protective environmental regulations on businesses, and restrict voting rights, have all appeared in state after state. And if you suspect that such legislation was not drafted by your state lawmakers, you would be right: these bills are flooding in straight from the desks of corporate lobbyists of the American Legislative Exchange Council, or ALEC.

What is ALEC?

ALEC is a tax-exempt 501(c)3 “nonprofit” organization that works to promote corporate interests in public policy and espouses principles of free markets, limited government, and federalism . Based in Washington D.C., ALEC is primarily a membership organization composed of hundreds of state legislators, and representatives of large corporations such as ExxonMobil, Koch Industries, and Peabody Energy. Though it claims to be non-partisan, it works almost exclusively through Republican legislators and pass laws ideologically similar to the beliefs of its 1970’s founders- Henry Hyde, Lou Barnett, and Paul Weyrich, known as the godfather of modern conservatism and founder of the Heritage Foundation, the Moral Majority, and other ultra-conservative groups.

Membership is highly selective and partisan, and is only offered to Republican legislators at a bargain of $100 biannually. ALEC does not publicly disclose the names of corporate members which account for 80% of ALEC’s funding (about 6 million dollars annually). Unfortunately, in order to access a large majority of the information pertinent to documenting ALEC’s influence and model legislation, one must be a paying member.

In another direct strike to open government, it appears that one must be a member of ALEC to know who- and more specifically which of our elected representatives- are ALEC members. Legislators are often decidedly elusive when asked about involvement in ALEC. Recently representative Tom McMillan of Michigan answered “it doesn’t matter” when asked about his ties to the secretive corporate organization, though evidence from his recent voting record would suggest otherwise . One of the few known members of ALEC is Russell Pierce, an Arizona Senator responsible for pushing the recent unconstitutional Arizona anti-immigration bill, SB 1070, and who also has obscure connections to neo-Nazi separatist groups . Pierce was present at the ALEC gathering where SB 1070 was drafted word for word. Locally, ALEC recently met with Oregon legislators , though information on which representatives are actually members remains evasive. Keep your eyes peeled for legislation that exploits workers, health and safety, and the environment as ALEC continues to attempt to purchase legislation for it’s extremely wealthy corporate puppeteers.

Just a few of the approximately 300 corporations who are members of ALEC

*Shook Hardy is a large law firm based in Kansas City, MO that has represented many pharmaceutical companies as well as other corporations such as Microsoft, Sprint, Ford and most of the major Tobacco companies.

What does ALEC do and why should you care?

ALEC’s main function is to draft “model bills” and to “educate” legislators about the issues it wishes to promote. These bought-and-paid-for-bills often re-emerge word-for-word as law. Past examples include: many state and federal laws and draft regulations that gravely roll-back environmental protections, the Animal Enterprise Terrorism Act, laws limiting rights to collective bargaining, and anti-immigration laws such as SB 1070 in Arizona. Cuéntame, a public interest organization, released a YouTube video explaining the connection between ALEC and the law (http://www.youtube.com/watch?v=vuGE1VxVsYo). Recently, around 1,000 ALEC bills have been introduced annually into state legislative bodies with around 200 of these bills becoming law . In 2010, 115 of 826 bills proposed passed in state legislative bodies . This number is likely to grow with the increase of Republican legislators elected in 2010. The laws are usually introduced in waves in the hope of overwhelming legislative staff and public interest watchdog groups. A recent example of this includes the upsurge in ALEC-influenced bills introduced in Tennessee (http://www.tennessean.com/article/20110515/NEWS/305150011/Outside-groups-write-some-TN-s-most-controversial-legislation). The bills introduced in rapid succession included a “call to repeal the federal health care law, laws to weaken unions, and a divisive bill to ban Islamic Sharia law which even its sponsors admitted to not reading before filing.”

ALEC is able to do this ghostwriting because it acts under the veil of “organizing to educate lawmakers about public policy issues.” Most of these bills are written at the tri-annual ALEC conferences, gatherings where the group sponsors golf tournaments and lavish parties at night .

Legislators can attend these events without acknowledging their corporate sponsorship because they are hosted as ALEC events. If this were interpreted as lobbying, as it should be, ALEC would lose its status as a tax-exempt federally recognized non-profit group pursuant to Internal Revenue Service regulations.

Our legislative bodies are not supposed to gather in such a secretive and non-public manner, and are not supposed to be unduly influenced by corporate funding in the form of corporate campaign donations–yet ALEC leadership justifies this by arguing that “legislators…will ask questions much more freely at our meetings because they are not under the eyes of the press, the eyes of the voters. They’re just trying to learn a policy and understand it. ” Often times, this means that the head of a corporation with a vested interest in the passage of a bill in a state legislature will be present and heavily influential regarding the drafting of a “model bill” at an ALEC gathering. Pathetically, the “model bill” later reappears verbatim as law.

Recently, ALEC has been behind extreme and unconstitutional legislation, such as the aforementioned Arizona anti-immigrant bill that became known as SB 1070. The Corrections Corporation of America, the largest private prison company in the US and an ALEC member, were present at the ALEC meeting where the Arizona immigration bill was drafted . ALEC was also found to be a driving force in the recent betrayal of the people of Wisconsin by governor Scott Walker, as evidenced in a report by a respected University of Wisconsin- Madison professor, William Cronon . After writing a popular blog post exposing ALEC as central in the appearance of bills in the Wisconsin legislature (laws that limit democracy as opposed to alleviating fiscal challenges), the Republican Party of Wisconsin unabashedly demanded to inspect records of Professor Cronon, specifically any of his e-mails from 2011 related to the governor or ALEC. ALEC has also produced a guide for state legislators on how to try to repeal the recent federal health care bill signed by President Obama .

Why is this bad for democracy?

ALEC undermines the public interest in what is supposedly a democratic country where all people are created equal. That is, until someone bribes legislation to the contrary in the interest of a group representing the nation’s largest corporations. ALEC buys the influence of our legislators and uses them to push forward laws that further the interests of corporate America, and in doing so, strips “we the people” of the constitutional freedoms that make up our democracy.

ALEC is a group promoting the interests of large corporations, not the people. This group consistently works under the radar of the media and journalists and has received little public review or criticism considering the gravity of its actions. ALEC uses shady tactics, including only allowing high paying organizations to be members or to access its model bills, not allowing interviews, or disclosing which legislators are members, and keeping much of its “work” behind closed doors. ALEC essentially lobbies through the guise of “educating” legislators on “best practices.” This “education” also takes the form of lavish ALEC gatherings where legislators get “scholarships” from unknown sources. These tactics are impermissible for a tax-exempt organization, which adds further concern as to why the IRS has not investigated these blatant violations. (You can bet if a lefty non-profit engaged in these same actions they would be investigated, fined and shut down.)

The agenda of ALEC also undermines the rights of real people in its legislative goals, in which it:

seeks to make it more difficult for people to hold corporations accountable in court; gut the rights and protections of workers and consumers; encumber health care reform; privatize and weaken the public education system; provide business tax cuts and corporate welfare; privatize and cut public services; erode regulations and environmental laws; create unnecessary voter ID requirements; endorse Citizens United; diminish campaign finance reform and permit greater corporate influence in elections (“ALEC: The Voice of Corporate Special Interests In State Legislatures,” People for the American Way).

ALEC is a highly influential group in our government and the people deserve to know how it is shaping our laws and how to contest the presence of corporations in private back rooms with our elected representatives. ALEC effectively constitutes the antithesis of democracy. It is contrary to buy or bribe representatives to legislate laws intended to benefit a particular industry or corporation without disclosure or checks and balances. Why are non-ALEC legislators not screaming and yelling about this? Why don’t we as constituents know more about ALEC?

What can you do?

First, you can ask your elected representatives if they are ALEC members and implore them to consider the needs of their constituency above those of a giant corporate interest group. Below is a template letter to send your legislator to find out more about ALEC in your state and to tell them that you oppose ALEC and its bills supporting industry and think that it is bad for democracy.

If there is a bill pending in your state that you know or suspect has ALEC behind it, send a letter to the editor of your local newspaper or other local news publication to let the public know who ALEC is and why its bills should not be supported. Below is a template letter to the editor to start, just add the details of the specific bill that you are writing about.

ALEC’s 38th annual meeting is being held at the Marriott in New Orleans from August 3rd-6th. Press is screened through ALEC and previous registration is required. For more details, visit: http://www.alec.org/AM/Template.cfm?Section=media.

Sources on ALEC

The ALEC website itself is a good place to start, though much of it is restricted to members. http://alec.org

CLDC has signed the Solidarity Statement against the raids and Grand Jury (taken from nopoliticalprepression.wordpress.com): On Wednesday July 25th, the FBI conducted a series of coordinated raids against activists in Portland, Olympia, and Seattle. They subpoenaed several people to a special federal grand jury, and seized computers, black clothing and anarchist literature. This comes after […]